Monday, October 28, 2013

socialNsecurity Chap 5

Step 3 asks if the impairment
meets or equals a medical “listing.” The Social Security
Administration uses more than 150 categories of medical
conditions, called “listings.” You can browse the Social Security listed impairments for adults. These
conditions are severe enough to presumptively preclude a person from working.

The claimant has the burden of proof and the burden of going forward with
the evidence at Steps 1 through 4.

Medical evidence alone
may establish that you are disabled if:

A.
The evidence shows that you have an impairment as described in
Part A of the Listing of Impairments; this is called "meeting" a
listing; or

B.
The evidence shows you have an impairment or combination of
impairments that is medically as severe as a listed impairment; this is called
"medically equaling" a listing.

You must not be
engaging in any substantial gainful activity.

The Listing of
Impairments can be used to establish disability.

The Listing of
Impairments (the listings) is set out in Social Security
regulations. The listings are in two parts. There are listings for
adults (part A) and for children (part B). For claimants over 18, Social
Security uses part A and for those under 18, SSA uses part B. The listings are
examples of common impairments for each of the major body
systems that Social Security considers severe enough to keep an average
adult from doing any gainful activity. See appendix 1 of subpart P of
part 404 of Social Security's regulations for the Listing of Impairments.

The listed impairments
are of such a level of severity that Social Security considers a person whose
impairment(s) meets or equals the Listing of Impairments to be unable to do any
gainful activity, that is, the impairment(s) is expected to result in death, or
to last for a specific duration, or the evidence must show that the listed
impairment has lasted or is expected to last for at least 12 months in a row.

BEWARE:Diagnosis of an impairment in the Listing
alone is not enough to establish your disability.

Generally, a diagnosis
alone does not meet the guidelines of the Listing simply because it is the same
diagnosis as a listed impairment. To be considered as "meeting" a
listing, the impairment must have the symptoms, clinical signs, and laboratory
findings specified in the Listing.

Compassionate
Allowances are a way of quickly identifying diseases and other medical
conditions that qualify under the Listing of Impairments, based on objective
medical information.

SSA implemented its
original Compassionate Allowance initiative in October 2008. At that time, the
list consisted of 50 conditions: 25 rare diseases and 25 cancers. Rather than
waiting months, and often years, for a hearing, individuals with these
conditions could qualify for expedited review and approval of their disability
claims, sometimes in a matter of days.

While many Americans
are struggling in these difficult economic times, those with severe illnesses
or injuries face nearly insurmountable challenges. The loss of employment
income along with enormous medical treatment costs can quickly exhaust all
their financial resources. The expansion of expedited processing through short
form decisions will offer much-needed relief to disabled individuals and their
families.

If you “meet or
equal a listing” you will be granted benefits. If you do not meet a listing,
SSA proceeds to Step 4.

The issues in the
following case concern the Third Step of the Disability Evaluation Process,
i.e., whether Plaintiff met a listed impairment which would entitle him to a
conclusive presumption of disability.

The Listing of Impairments
in the Social Security Regulations identifies impairments that are considered
severe enough to prevent a person from gainful activity. By meeting a listed impairment
or otherwise establishing an equivalence, a claimant is "conclusively
presumed to be disabled based on his or her medical condition," without
regard to the claimant's age, education, or work experience. The ALJ must stop
the sequential evaluation process if the claimant can prove the existence of a
listed impairment. However, at this stage of the evaluation process, the burden
is on the claimant to prove that he or she is disabled. A plaintiff must
present specific findings that meet the various tests listed under the
applicable Listing. Mere diagnosis of a listed impairment is not enough. The
record must contain corroborative medical evidence supported by clinical and
laboratory findings

HINES v. ASTRUE

THOMAS HINES, Plaintiff,

v.

MICHAEL J. ASTRUE, Commissioner of the Social Security
Administration, Defendant.

Case No.
3:09-CV-00461-J-JBT.

United States District
Court, M.D. Florida, Jacksonville Division.

September 17, 2010.

ORDER

JOEL B. TOOMEY,
Magistrate Judge.

THIS CAUSE is before
the Court on Plaintiff's appeal of an administrative decision denying his
application for a Period of Disability, Disability Insurance Benefits
("DIB"), and Supplemental Security Income ("SSI"). The
Court has reviewed the record, the briefs, and the applicable law. For the
reasons set forth herein, the Commissioner's decision is AFFIRMED.

I. Synopsis of the
Issues on Appeal

As framed by Plaintiff,
there are two issues on appeal. Both issues concern the third step of the
required analysis, i.e., whether Plaintiff met a listed impairment which would
entitle him to a conclusive presumption of disability, Crayton v. Callahan, 120
F.3d 1217, 1219 (11th Cir. 1997). First, Plaintiff contends the Administrative
Law Judge ("ALJ") erred in finding that Plaintiff failed to
"meet his burden in proving that his . . . impairment met . . . Listing
14.08B(2) and/or 14.08C(2)."Second, Plaintiff argues the Appeals Council erred "by (1) failing
to recognize that the ALJ erred in determining that [Plaintiff's] impairments
did not meet a Listed impairment(s) and (2) failing to recognize that
[Plaintiff's] HIV impairment met revised Listing 14.08B(2) and/or
14.08B(7)." (Id.)

II. Social Security Act
Eligibility and the Standard of Review

A plaintiff is entitled
to disability benefits when he is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to either result in death or last for a continuous period
of not less than twelve months. 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A); 20 C.F.R.
§§ 404.1505(a), 416.905(a) (2007). The Commissioner has established a five-step
sequential analysis for evaluating a claim of disability. See 20 C.F.R. §§
404.1520, 416.920. Plaintiff bears the burden of persuasion through the fourth
step, and at the fifth step the burden shifts to the Commissioner. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).

The scope of this
Court's review is limited to determining whether the ALJ applied the correct
legal standards and whether the findings are supported by substantial evidence.
McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988) (citing Richardson v.
Perales, 402 U.S. 389, 390 (1971)). The Commissioner's findings of fact are
conclusive if supported by substantial evidence. 42 U.S.C. § 405(g).
Substantial evidence is "more than a scintilla, i.e., evidence that must
do more than create a suspicion of the existence of the fact to be established,
and such relevant evidence as a reasonable person would accept as adequate to
support the conclusion." Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.
1995) (per curiam) (internal citations omitted); see also Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005) (per curiam) ("Substantial evidence is
something `more than a mere scintilla, but less than a preponderance.'").

Where the
Commissioner's decision is supported by substantial evidence, the district
court will affirm, even if the reviewer would have reached a contrary result as
finder of fact, and even if the reviewer finds that the evidence preponderates
against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3
(11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991) (per
curiam). "The district court must view the record as a whole, taking into
account evidence favorable as well as unfavorable to the decision." Foote,
67 F.3d at 1560; see also Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir.
1992) (stating that the court must scrutinize the entire record to determine
the reasonableness of the factual findings).

III. Background Facts

Plaintiff filed an
application for a Period of Disability and DIB on June 21, 2006 and for SSI on
June 22, 2006, alleging an inability to work since February 15, 2002. The
Social Security Administration ("SSA") denied these applications
initially and upon reconsideration. Plaintiff amended his alleged onset date to
March 10, 2006. Thus, Plaintiff's claim is that he was disabled from March 10,
2006 to February 29, 2008, due to HIV, complications arising from HIV, and
neck, back, and shoulder problems.

Plaintiff requested and
received a hearing before an ALJ on October 18, 2007. Plaintiff testified at
the hearing. The ALJ issued her decision on February 23, 2008, finding
Plaintiff not disabled and denying his claim.

The ALJ first
determined Plaintiff met the insured status requirements of the Social Security
Act through June 30, 2008. At step one, the ALJ found Plaintiff had not engaged
in substantial gainful activity since his amended alleged onset date, March 10,
2006. (Id.) At step two, the ALJ determined that Plaintiff had the following
severe impairments: "HIV and degenerative disc disease of the cervical
spine." (Id. (citations omitted).)

At step three, the ALJ
concluded that Plaintiff did not have an impairment or a combination of
impairments that meets or medically equals one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. Although the ALJ heard and considered
evidence submitted by Plaintiff that his impairments met one or more of the
listed impairments under section 14.08, after considering all of the evidence,
the ALJ determined that they did not.

Proceeding with the
analysis, the ALJ found: "[Plaintiff] has the residual functional capacity
to perform the exertional demands of light work or work which requires maximum
lifting of twenty pounds and frequent lifting of ten pounds. He can sit, stand,
or walk for up to 6 hours in an 8 hour workday." (Id.) The ALJ further
determined that "the claimant's medically determinable impairments could
reasonably be expected to produce the alleged symptoms, but . . . the
claimant's statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible."

At step four, the ALJ
determined Plaintiff was unable to perform any of his past relevant work. At
step five, the ALJ found that considering Plaintiff's age, education, work
experience, and RFC, "there are jobs that exist in significant numbers in
the national economy that the claimant can perform." (Id.) Thus, the ALJ
concluded that Plaintiff has not been under a disability within the meaning of
the Social Security Act from March 10, 2006 through the date of the ALJ's
decision.

The same day that the
ALJ issued her decision, Plaintiff filed a Request for Review by the Appeals
Council, which was denied on April 2, 2009. Accordingly, the ALJ's February 23,
2008 decision was the final decision of the Commissioner. Plaintiff timely
filed his Complaint in the United States District Court for the Middle District
of Florida on May 22, 2009.

IV. Analysis

A. Standard Regarding
Listings

The listing of
impairments in the Social Security Regulations identifies impairments that are
considered severe enough to prevent a person from gainful activity. See
Crayton, 120 F.3d at 1219. By meeting a listed impairment or otherwise
establishing an equivalence, a claimant is "conclusively presumed to be
disabled based on his or her medical condition," id., without regard to
the claimant's age, education, or work experience, Edwards v. Heckler, 736 F.2d
625, 628 (11th Cir. 1984). Thus, an ALJ's sequential evaluation of a claim ends
if the claimant can establish the existence of a listed impairment. Id.
However, at this stage of the evaluation process, the burden is on the claimant
to prove that he or she is disabled. Wilkinson ex rel. Wilkinson v. Bowen, 847
F.2d 660, 662 (11th Cir. 1987). In this circuit, a plaintiff must present
specific findings that meet the various tests listed under the applicable
listing. Id. Mere diagnosis of a listed impairment is not enough as the record
must contain corroborative medical evidence supported by clinical and
laboratory findings. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991).

B. Issues on Appeal

1. Whether the ALJ
erred in finding that Plaintiff failed to "meet his burden in proving that
his HIV impairment met. . . Listing 14.08B(2)"

Under 20 C.F.R. Part
404, Subpart P, Appendix 1, section 14.08B(2), a person is disabled if he is
infected with HIV and has "[c]andidiasis, at a site other than the skin,
urinary tract, intestinal tract, or oral or vulvovaginal mucous membranes; or
candidiasis involving the esophagus, trachea, bronchi, or lungs."

The Commissioner
concedes that Plaintiff was HIV-positive during the relevant time frame.
Plaintiff argues that his March 31, 2006 diagnosis of "oral esophageal
thrush" at Shands Jacksonville and his October 4, 2007 diagnosis of
"esophageal candidiasis" by Dr. H.B. Reeder, a treating physician,
establish that he met Listing 14.08B(2). To further bolster his argument, Plaintiff
points out that, upon the first of those diagnoses, he was prescribed
Fluconazole, the medicine customarily prescribed to treat candidiasis. (Id.)

Although those
diagnoses and the prescription raise an issue whether Plaintiff had esophageal
candidiasis, "impairment(s) cannot meet the criteria of a listing based
only on a diagnosis." 20 C.F.R. §§ 404.1525(d), 416.925(d); see also
Carnes, 936 F.2d at 1218. For a claimant to establish that his condition meets
a listed impairment, the diagnosis must be corroborated with medical evidence
supported by clinical and laboratory findings. Carnes, 936 F.2d at 1218. There
is no such evidence in the record.

Moreover, there is
substantial evidence in the record that claimant's candidiasis was only oral
and not esophageal. First, the only unequivocal diagnosis in the record that
Plaintiff met Listing 14.08B(2) was Dr. Reeder's conclusory opinion in response
to a questionnaire that Plaintiff had "esophageal candidiasis," among
many other diagnoses. While weighing that opinion, the ALJ appropriately
considered the other, and in this case inconsistent, evidence. For example,
Plaintiff had numerous diagnoses of mere oral candidiasis. (See Tr. 218
(opining that Plaintiff's "oral cavity has thrush"), 462 (stating
that Plaintiff has "[o]ral [t]hrush"), 479 (stating that Plaintiff
recently had "oral thrush"), 491 (finding that Plaintiff had
"oral thrush on posterior pharynx, roof of mouth"), 494 (assessing
Plaintiff as having "[o]ral [t]hrush").)

Regarding Plaintiff's
symptoms in general, Dr. Hung Tran, a consultative examiner, found no symptoms
resulting from Plaintiff's HIV-positive status. Similarly, Dr. Eric Puestow,
another consultant, found "no documented manifestations" of HIV. And
Plaintiff's laboratory results indicated that the symptoms of Plaintiff's
HIV-positive status were mostly, if not entirely, resolved. Thus, the ALJ's
conclusion that Plaintiff did not meet the requirements of Listing 14.08B(2)
rests on substantial evidence.

Under 20 C.F.R. Part
404, Subpart P, Appendix 1, section 14.08C(2), a person is disabled if he is
infected with HIV and has "[p]neumocystis carinii pneumonia [PCP] or
extrapulmonary pneumocystis carinii infection."

In support of his
argument that he met this listing, Plaintiff relies on a diagnosis
"possibly consistent with [PCP]" upon his admission to Shands
Jacksonville on May 3, 2006, and the May 5, 2006 consult diagnosis by Dr. James
Cury, during that same hospitalization, that Plaintiff had "diffuse
pneumonia that is Pneumocystis until proven otherwise, but could be community
acquired pneumonia". Plaintiff also relies on his May 9, 2006 diagnosis of
PCP upon his discharge from the same hospitalization. And finally, Plaintiff
offers the conclusory opinion of Dr. Reeder, in response to the same
questionnaire aforementioned, that Plaintiff had "PCP pneumonia,"
among many other diagnoses.

Again, these diagnoses
raise an issue whether Plaintiff may have had PCP. But a diagnosis alone is not
enough, 20 C.F.R. §§ 404.1525(d), 416.925(d), and the record is void of any
corroborative medical evidence supported by clinical and laboratory findings,
see Carnes, 936 F.2d at 1218.

Moreover, the record is
also reasonably susceptible to a conclusion that Plaintiff did not have PCP,
but rather some other pulmonary disorder. In addition to Dr. Cury's ambiguous
diagnosis discussed above, there were several other equivocal diagnoses
regarding Plaintiff's pulmonary health (Tr. 402, 487 (opining that Plaintiff
might have "pulmonary edema," "multilobar pneumonia, atypical
pneumonia")). Thus, the ALJ's conclusion that Plaintiff did not meet the
requirements of Listing 14.08C(2) is supported by substantial evidence.

3. Whether the Appeals
Council erred "by (1) failing to recognize that the ALJ erred in
determining that [Plaintiff's] impairments did not meet a Listed impairment(s)
and (2) failing to recognize that [Plaintiff's] HIV impairment met revised
Listing 14.08B(2) and/or 14.08B(7)"

Plaintiff argues the
Appeals Council erred by failing to recognize the ALJ erred in her
determination that Plaintiff's impairments did not satisfy the criteria of the
Listings. Because the Court has already determined that the ALJ did not err in
her determination of that issue, it similarly concludes that the Appeals
Council did not err by refusing to review the ALJ's decision of that issue. See
20 C.F.R. §§ 404.970, 416.1470 (stating the limited circumstances in which the
Appeals Council will review a case).

Plaintiff also argues
that the Appeals Council erred by failing to recognize Plaintiff's impairment
met Listings 14.08B(2) or 14.08B(7), as revised after the ALJ's decision. (Doc.
22.) Because the revised regulations were clearly not intended to be applied
retroactively, see 73 Fed. Reg. 14570, 14572 (2008) (stating an expectation
that "the court would review the Commissioner's final decision in
accordance with the rules in effect at the time the final decision of the
Commissioner was issued"), the Appeals Council was bound to apply the law
in place at the time the ALJ issued her decision when deciding whether to
review that decision. Moreover, there does not appear to be any significant difference
between the two versions. Accordingly, the Appeals Council committed no error
when it declined to review the ALJ's decision and retroactively apply the
amended regulations.

V. Conclusion

The Court does not make
independent factual determinations, reweigh the evidence or substitute its
decision for that of the ALJ. Thus, the question is not whether the Court would
have arrived at the same decision on de novo review; rather the Court's review
is limited to determining whether the ALJ's findings are based on appropriate
legal standards and are supported by substantial evidence. Based on these
standards, the Court concludes that the ALJ's decision that Plaintiff was not
disabled within the meaning of the Social Security Act is due to be affirmed.
Accordingly, it is hereby

ORDERED:

The Commissioner's
decision is hereby AFFIRMED. The Clerk of the Court is directed to enter
judgment AFFIRMING the Commissioner's decision and to close the file.

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